OK Court: No Proof of Marriage? No Same-Sex Divorce

By Joel Zand on March 16, 2010 11:46 AM

Same-sex marriage is legislated and litigated in many American states. But what happens if gay or lesbian couples marry in a state or country where doing so is legal, return to their home state where same-sex marriage is not recognized, and then file for divorce? If their marriage was lawful elsewhere, must their application for divorce also be deemed legal in their home state?

In a unanimous three-judge decision, an Oklahoma appellate court ruled no (see below).

One of the women alleged in her original 2006 divorce petition that they were legally married in Canada. The Oklahoma trial court initially granted their divorce petition, but changed its mind "after learning the parties were both women."

Emphasizing that there is no constitutional right to divorce, the Oklahoma Court of Civil Appeals explained divorce laws are made by the state.

The real obstacle appears to be that the woman who filed for divorce failed to show proof that she and her alleged spouse were legally married in Canada. The trial court noted that she "failed to produce a 'certified copy of a document evidencing a relationship legally cognizable in the country of Canada.'"

Regardless of whether the failure to show a valid marriage is in fact a jurisdictional defect or is simply a failure to state a claim, our review shows that dismissal was required on either basis because Appellant failed to show proof of a valid marriage.

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You can read the Oklahoma appeals court decision against same-sex divorce here: